Probate, trust, guardianship and inheritance litigation
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Missouri Supreme Court: No Excusable Neglect For Surviving Spouse Who Disregarded Probate Court’s Orders To Obtain Appointment As Personal Representative

In Holmes v. Holmes, a March 2021 opinion from the Missouri Supreme Court, the Court reviewed a probate court’s ruling finding no excusable neglect and barring a surviving spouse’s petition to file an amended petition to pursue a wrongful death lawsuit due to the spouse’s failure to timely obtain appointment as personal representative and disregard of the Missouri probate court’s orders.

The Facts of Holmes v. Holmes

Decedent, Robert V. Holmes,  was employed by Union Pacific as a fireman and conductor for forty years.  Decedent contracted lung cancer and died in July 2015.  Decedent’s surviving spouse, Carolyn Holmes (“Holmes”), brought a wrongful death lawsuit against Union Pacific under FELA, alleging Decedent’s cancer and death were caused or contributed to by his exposure to toxic substances and carcinogens during his employment. The petition’s caption named Holmes as the personal representative of Decedent’s estate, and Holmes characterized herself as the personal representative twice in the petition. Holmes also executed medical record release authorizations in her purported capacity as the personal representative.

Union Pacific learned that Holmes had not actually been appointed as personal representative of Decedent’s Estate and moved to dismiss Holmes’ wrongful death lawsuit because she was not the personal representative of Decedent’s estate at the time she commenced the action or as the action proceeded.

Holmes did not file a timely response to the motion to dismiss.  Instead, almost a month after her response was due, Homes moved for leave to file a response out of time due to excusable neglect.

The circuit court permitted Holmes more time.  On March 4, 2019,  the circuit court issued a thirty-day stay in the proceedings for Holmes to file an amended petition in conformance with Missouri and Local Rule.  Holmes’ deadline to file her amended petition as personal representative was April 3, 2019.

On April 1, 2019, Holmes filed a court memorandum indicating she opened Decedent’s estate and submitted her application to be appointed the personal representative.

Holmes did not file an amended petition on April 3, 2019 as required by the court’s March 4, 2019 order.  Union Pacific renewed its motion to dismiss.

On April 9, 2019, the probate division issued letters of administration to Holmes.  The next day, Holmes moved to file an amended petition out of time, again pleading excusable neglect occurred under Rule 44.01(b). Holmes maintained she prepared the request for the letters of administration in the time the circuit court required but faulted the probate clerk for taking fifteen days to perform a ministerial task.

The circuit court overruled Holmes’ motion to file her amended petition out of time due to her inability to abide by the deadline imposed in its March 4, 2019, order. The circuit court dismissed Holmes’ petition without prejudice, explaining the probate division issued the letters of administration more than one year after Decedent’s death and Holmes failed to be appointed the personal representative prior to filing the lawsuit or in the time proscribed by the March 4, 2019, order.  The circuit court denied a motion for reconsideration filed by Holmes.

When Can the Missouri Probate Court Expand The Time Period To File Certain Pleadings?

A Missouri circuit court generally has authority to expand time periods for filing certain pleadings on several grounds, one being excusable neglect. Rule 44.01(b) provides:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

What Is Excusable Neglect Under Missouri Law?

Under Missouri law, “[e]xcusable neglect is the failure to act ‘not because of the party’s own carelessness, inattention, or willful disregard of the court’s process, but because of some unexpected or unavoidable hindrance or accident.’” Irvin v. Palmer, 580 S.W.3d 15, 22 (Mo. App. E.D. 2019) (quoting State ex rel. Mylan Bertek Pharm., Inc. v. Vincent, 561 S.W.3d 68, 72 (Mo. App. E.D. 2018)).

“Excusable neglect is an action attributable to mishap and not the result of indifference or deliberate disregard.” Mylan, 561 S.W.3d at 72 (quoting Inman v. St. Paul Fire & Marine Ins. Co., 347 S.W.3d 569, 576 (Mo. App. S.D. 2011)).

“Importantly, demonstrating excusable neglect is a higher burden than proving an action was not ‘recklessly designed to impede the judicial process’ as required to show good cause ….” Irvin, 580 S.W.3d at 22.

The Surviving Spouse’s Neglect In Obtaining Appointment As Personal Representative Was Not Excusable

The Missouri Supreme Court went in depth about all of the reasons why Holmes’ neglect was not excusable:

The record is replete with instances in which Holmes acted with carelessness, inattention, and deliberate disregard for securing her status as the personal representative of Decedent’s estate and for failing to comply with the circuit court’s deadline.

To explain her failure to secure an appointment, Holmes first asserts she was unaware she had a cause of action against Union Pacific when Decedent died in July 2015. Yet the record demonstrates Holmes’ counsel had knowledge due to litigating this issue with Union Pacific in at least five previous cases —before this lawsuit was filed in April 2018—that Holmes needed to be appointed as the personal representative. 3 Instead of securing the appointment prior to filing her suit, Holmes’ petition falsely named herself as the personal representative of Decedent’s estate. Holmes later executed medical authorizations to release Decedent’s medical records in her purported capacity as the personal representative. Holmes’ counsel candidly admitted in November 2018—almost seven months after filing the lawsuit—that “no estate was open” and he planned to petition the probate division for letters of administration.

Holmes took no action to petition the probate division even after Union Pacific filed a motion to dismiss in late December 2018. Holmes now contends that once Union Pacific moved to dismiss her lawsuit, she chose to wait for the circuit court to issue a ruling. Holmes explains: “If she had acted immediately and the court dismissed the action without allowing her to cure the deficiency, she would have expended a considerable amount of money to no end. It was only prudent to wait for the [circuit] court’s ruling.” Hence, Holmes made a conscious decision to forego correcting her pleading that she repeatedly argued was easily curable and could be done “instantly.” Nevertheless, the circuit court granted Holmes’ request and gave her thirty days in which to secure the appointment and amend her petition. This ruling extended the circuit court’s scheduling order deadline for amendment of pleadings by almost four months.

Holmes did not open Decedent’s estate “instantly;” instead, she waited three weeks to file the necessary pleadings with the probate division to be appointed as the personal representative. Holmes makes much of the fact that the circuit court had knowledge of her efforts to secure the appointment through her April 1, 2019, court memorandum. The memorandum contained three sentences informing the circuit court an estate had been opened, Holmes filed an application to be appointed the personal representative, and Decedent’s heirs had renounced their rights. Holmes contends she “did not dawdle” because she spent the thirty days presumably hiring local counsel, preparing pleadings, and executing essential documents to obtain the appointment. Holmes did not inform the circuit court of her purported efforts during the thirty-day time period in the April 1, 2019 memorandum or when she filed her motion for leave to amend her petition out of time on April 10, 2019. Instead, she waited until May 15, 2019, to explain her actions when she filed her reply to Union Pacific’s suggestions in opposition to her motion for reconsideration after the circuit court dismissed her petition. Holmes failed to offer any evidence or affidavits to substantiate her efforts to secure the appointment. Allegations contained in a motion for reconsideration that include factual matters outside of the record are not self-proving. See Frontenac Bank v. GB Investments, LLC, 528 S.W.3d 381, 393 (Mo. App. E.D. 2017).

All of these actions belie Holmes’ assertion leave to amend out of time should have been granted due to excusable neglect. The record establishes Holmes took no action to obtain appointment as the personal representative of Decedent’s estate until March 25, 2019, which was almost eleven months after she filed suit, four months after informing Union Pacific’s counsel she would seek the appointment, two months after beseeching the circuit court to grant her leave to seek the appointment “instantly,” and merely ten days before the circuit court’s deadline expired. Holmes’ inaction cannot be characterized as some unexpected or unavoidable hindrance or accident.

Holmes argues her “hands were tied” until the probate clerk issued the letters of administration appointing her as the personal representative. This Court finds such issuance of letters of administration less than three weeks after the estate was opened did not constitute an unavoidable hindrance, especially when Holmes’ counsel knew it was necessary and required to secure this appointment prior to filing the lawsuit.

It is quite clear from the opinion that the Missouri Supreme Court, as well as the probate court, was not pleased with Holmes’ cavalier approach to obtaining appointment as personal representative, and the fact that she blamed the probate court for her failure to comply with the court’s order.

The Missouri Supreme Court determined that the circuit court properly concluded Holmes’ failure to file her amended petition in her actual capacity as the personal representative of Decedent’s estate by the circuit court’s deadline was not the result of an unexpected or unavoidable hindrance, accident, or mishap, but was instead the result of Holmes’ carelessness, inattention, and deliberate disregard, and that the neglect was not excusable.  Lesson:  choose your Missouri probate lawyer wisely, because you don’t get unlimited opportunities to follow the rules and comply with court orders.



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